January 14, 2009

Once-Secret Information Unsealed in Stevens Whistleblower Complaint

U.S. District Judge Emmet Sullivan this evening released a second, fuller version of the whistleblower complaint that claims an FBI special agent and members of the prosecution team in the Ted Stevens case intentionally withheld evidence from the senator’s lawyers at trial. A copy of the complaint, which includes details that were previously blacked out, appears here.

FBI Special Agent Chad Joy, the co-case agent working the Stevens investigation in Alaska, is the whistleblower. He contends that a fellow agent “mishandled her sources by becoming too close to each of them.” Joy also accuses Nicholas Marsh, a prosecutor in the Justice Department’s Public Integrity Section, of attempting to conceal exculpatory information from the Williams & Connolly lawyers representing Stevens (pictured at right).

An FBI spokesman in Alaska could not immediately be reached for comment. “We will continue to litigate in the court all matters, including these allegations, related to the jury’s conviction of Senator Ted Stevens,” says Justice Department spokeswoman Laura Sweeney.

Joy accuses Special Agent Mary Beth Kepner, the primary case agent, of accepting art from a source and employment for her husband through a source, according to a portion of the complaint that was previously redacted. The complaint alleges that Kepner provided details of FBI investigations to her husband. Kepner is also accused of redacting an FBI report to make it match a letter that a prosecutor sent to Stevens’ lawyers. The redacted material, Sullivan ruled, should have been turned over to the defense.

Marsh was the prosecutor who, according to Joy, “inappropriately” devised a plan to relocate a government witness who was also under a defense subpoena. Judge Sullivan was angered when he learned that the witness had returned to Alaska. The judge lambasted the prosecution several times during the Stevens trial for what he deemed were intentional violations of procedure.

When Sullivan released the whistleblower complaint to the public last month, Joy’s name was redacted at the request of Joy, his lawyer, and the prosecution team. Joy said in the complaint that he fears reprisal for the criticism he has lodged. Prosecutors told Sullivan today that Joy has been denied whistleblower protection by the Justice Department.

The Williams & Connolly defense lawyers argued early on for the release of the entire, unredacted complaint. Lead defense counsel Brendan Sullivan Jr. reiterated that position today in court.

This time, the prosecution had a change of heart—at least in part. William Welch, chief of the Public Integrity Section, asked today that certain redactions be removed as prosecutors prepare their response to Stevens’ motion to dismiss the indictment that led to his conviction in October. For practical reasons, Welch argued, the names of certain government employees should be revealed in the complaint.

The employees were informed their names would be released, and Judge Sullivan told Joy’s lawyer, who is not identified in court records, that a second version of the complaint was being published today with Joy’s name revealed.